New & Notable: Telus, Duarte and Undercover Police Operations over the Internet

In April 2013, I wrote a blog post about the Telus Communications Co. decision from the Supreme Court of Canada. In it I made the modest observation that we would not have to wait long in order to see whether Cromwell J’s concerns about the mischief that could be caused by the court’s adoption of a broader interpretation of the term “intercept” in the context of electronic surveillance would come true. The results are in: R. v. Mills, 2013 CanLII 74953 (NL PC).


The Facts

A police officer in St. John’s, Newfoundland set up Hotmail and Facebook accounts for a fictitious fourteen-year-old girl named Leann. On the Facebook profile page, the male officer provided information that Leann went to a local high school. The officer included a picture that he had obtained from the Internet. The Facebook account soon started receiving friend requests.

A little less than a month had passed when “Leann” got a message from a 32-year-old male by the name of Sean Mills asking about her Facebook profile photo. The officer posing as Leann responded and a series of email communications ensued between the undercover officer and Mr. Mills. Within a very few days of the first contact, Mills had provided his cell phone number and had asked “Leann” to send him pictures of herself. He also lied by stating that he was 23 years old. It was clear from the communications before the court that Mills knew “Leann’s” age.

All of the communications between the two, with one exception, were by email. On one occasion, the undercover officer posted a message on Mills’ Facebook page, but Mills took it down and sent a message to “Leann” to explain why: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.” [Para. 10]

The officer took screen captures of the emails that constituted the communications between him and Mr. Mills. The information from the emails was then used to gain access to the accused’s cell phone number and subscriber information, his motor vehicle information including his residential address and DOB.

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New & Notable: Emergency! Emergency wiretaps are unconstitutional

Section 184.4 of the Code permits a peace officer to intercept private communications, without prior judicial authorization, if there are reasonable grounds to believe it is necessary to prevent an unlawful act which would cause serious harm and authorization could not be obtained with reasonable diligence.  In 12 months, absent actions by Parliament, that section will no longer exist.  The Supreme Court has found it to be unconsitutional in R v Tse, 2012 SCC 16.
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